House of Commons Hansard #142 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was country.

Topics

Supply
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5:15 p.m.

Some hon. members

No.

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The Acting Speaker (Ms. Bakopanos)

All those in favour of the motion will please say yea.

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Some hon. members

Yea.

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The Acting Speaker (Ms. Bakopanos)

All those opposed will please say nay.

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Some hon. members

Nay.

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The Acting Speaker (Ms. Bakopanos)

In my opinion the yeas have it.

And more than five members having risen:

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The Acting Speaker (Ms. Bakopanos)

Pursuant to order made Tuesday, October 21, the recorded division stands deferred until Tuesday, October 28 at the expiry of the time provided for government orders.

Is it agreed to see the clock as 5:30 p.m.?

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Some hon. members

Agreed.

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The Acting Speaker (Ms. Bakopanos)

The House will now proceed to the consideration of private members' business as listed on today's Order Paper.

The House resumed from May 8 consideration of the motion that Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act (sentencing principles), be read the second time and referred to a committee.

Criminal Code
Private Members' Business

October 23rd, 2003 / 5:15 p.m.

Canadian Alliance

John Duncan Vancouver Island North, BC

Madam Speaker, I am pleased to speak today to my colleague's bill, which would have the effect of reversing changes the government made in 1996, which my party opposed because they created non-equality before the law.

A basic premise of our law is that all citizens are equal before the law. What the amendment did was create a two tier system of justice, one for aboriginal Canadians and one for all other Canadians.

What those nine words in section 718.2(e) of the Criminal Code did was suddenly discriminate against Canadian citizens and native people by creating a system of differential sentences. This goes against every principle that most Canadians hold dear.

The government would argue, of course, that this levelled the playing field because of the high rates of incarceration for our native peoples. That is a symptom of a whole different set of circumstances. We are not saying anything about community sentencing not being appropriate. We think it is highly appropriate.

What we are opposed to are the changes to the differential provisions under the Criminal Code. These have led to exactly where we thought they would lead. It has now put an onus onto judges to make decisions that fly in the face of common sense.

One of the implications of the current situation with our aboriginal population, in many situations, is that crimes perpetuated by aboriginals are perpetuated on aboriginals. Therefore they are the perpetrator and the victim. The aboriginal victims are being victimized all over again by this provision of the Criminal Code because it means they do not receive justice either.

Once more we have another symptom of the government promoting not criminal justice but justice for criminals. This is most inappropriate.

I have been very aware of community efforts to divert people from the sentencing procedures under the Criminal Code to a community sentencing option that judges can make reference to for all Canadians, not just aboriginals but some of them are specific for aboriginals. This can happen under the old law where all Canadians are treated equally.

Some of the alternative sentencing programs are most appropriate and have had very good results in terms of rehabilitating people. As we know, straight incarceration is often not the best alternative.

A judge on a case with which I am familiar said that the perpetrator had a cycle, a cycle of freedom, drunkenness and jail, and that cycle perpetuates itself and has perpetuated itself for a long time.

The individual in that case, after seven very serious violent assaults over a short period of time, has suddenly been given a conditional sentence. This means he will not be incarcerated but he will be expected to stay at home. This is most inappropriate since all the testimony and all the evidence has indicated that the person is not capable of meeting those requirements and will once more be a danger to his aboriginal community. The cycle of violence and abuse will begin all over again. This is most inappropriate.

That is why this amendment to the Criminal Code, proposed by my colleague from Manitoba, is endorsed by the First Nations Coalition for Accountability and others. We have had many well-intentioned moves by government that have been very counterproductive in this whole area.

I can provide another example of a problem. The federal government attempted to move female federal offenders closer to their communities so that rather than all of them being housed at Kingston, they would be dispersed across the country. The net result of all that, according to the Elizabeth Fry Society, and despite the monstrosity of the Kingston Penitentiary, is that these women are now worse off than they were before because there was no more money spent on them. When they were all in one place, programming was affordable for them, but now it is not given the resources that have been allocated.

This is a typical, ill-conceived methodology that the government is operating in its corrections system. It is changing the Criminal Code to suit its objective of incarcerating less people without putting the resources in place that will ensure that individuals who are sentenced in some other way are indeed rehabilitated and will not pose a further risk to their communities.

There are some very obvious examples of areas where I think the public would readily see why this amendment would be appropriate. For example, we all remember the sad story in December 2001 when RCMP constable, Dennis Strongquill, was murdered in the line of duty by Robert Sand. Mr. Sand's lawyer argued that he should receive a more lenient sentence because he was aboriginal. Mr. Strongquill was also an aboriginal who left six children fatherless.

A system of discounted sentencing based strictly on race divides our society and creates further victims. It does not assist or abet the development of the fabric of our society in the way that we should be using the Criminal Code. Once again we find the government promoting policies that divide Canadians rather than unite Canadians.

I want to conclude by saying that justice must be blind. Justice must not be peeking out from behind a blindfold, which is what this change to the Criminal Code has created within our system.

I urge all members to support this most enlightened bill coming from the member for Portage—Lisgar.

Criminal Code
Private Members' Business

5:25 p.m.

Bloc

Marcel Gagnon Champlain, QC

Madam Speaker, I am pleased to speak today, on behalf of my party, on this bill to amend the Criminal Code by removing the obligation for the courts to pay special attention in the case of aboriginal adolescents or other groups of adolescents. I find it hard to talk about the fact that aboriginal peoples should not be considered in a particular way, and that they should be judged in the same way as everybody else.

Members need to have aboriginal communities in their ridings, as I do, and see the particular circumstances in which they live, to know that judges must be asked to consider these particular circumstances when judging aboriginal teens for any offences they might have committed.

We must try to act more justly toward this community. It is not true that aboriginal peoples have the same opportunities. It is not true that they are not influenced by their environment. It is not true that they have the opportunity to develop like everyone else.

It is true that we hear all kinds of things about the abooriginal peoples. Each time I have the opportunity to visit a reserve, as I did recently and as I will again in two weeks, I realize that there are people who live in trying circumstances. Without excusing them, I can understand that, at times, a despairing young aboriginal may commit reprehensible acts. On the contrary, I ask judges to consider the unique situation of these people.

We will vote against this bill, because we feel that sentencing alone is not enough, there must be understanding too. Recently, on my way back to Ottawa, I was listening to a show on Radio-Canada hosted by Marie-France Bazzo. She was interviewing an expert who showed how punishment, revenge and violence, even if reprehensible, begets only violence.

He showed that the United States, for example, has the highest prison population. Over the past few decades, the prison population in the U.S. has risen from one-third of a million to 2.3 million today. If violence is on the rise anywhere, it is in the United States.

Given all the measures that would prevent a judge from understanding the situation and analyzing the facts, particularly when it comes to adolescents, I will vote against this bill.

The House will remember the debates on the Young Offenders Act. My hon. colleague, Michel Bellehumeur, who is now a judge in Quebec, travelled around Quebec and fought to get Quebec's system adopted instead, since it had proved effective. Quebec's system is based on understanding and helping young offenders. It is not a system that seeks to impose harsher sentences, but rather one that ensures young offenders will be helped and reintegrated into society.

I am personally acquainted with some young people who today are a credit to Quebec society, but might have been put behind bars for life had they been judged with the severity that is being proposed.

I do not believe we should vote in favour of this legislative amendment. What is needed instead is to make an effort to take into consideration the conditions in which aboriginal people live and to, in the words of the law “respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements”. This position, as a minimum, must be retained.

Looking at the latest census, we see that the average income of Canadians over the age of 15 years is $25,196. The average for aboriginal Canadians, however, is $14,283. So I do not want anyone to try to tell me that aboriginal young people lived in the same conditions as other Canadians.

These people need understanding. They need help. They need consideration of their situation. Let us try to help them and to understand them, rather than try to punish them, disregarding the fact that they are aboriginals and live under special circumstances.

I could certainly repeat the speeches made in this place by Michel Bellehumeur when he was an MP. They would show that what is needed is understanding, not repression. I share that opinion, and I am sure my party does as well. We will, therefore, be voting against this amendment.

Criminal Code
Private Members' Business

5:35 p.m.

Liberal

Derek Lee Scarborough—Rouge River, ON

Madam Speaker, I am pleased to speak to Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act introduced by the hon. member for Portage—Lisgar.

This bill would result in amending the Criminal Code and the Youth Criminal Justice Act so that a court would no longer have to consider the particular circumstances of aboriginal offenders when passing sentence. The amendment would apply to both adult and youth offenders.

The specific section of the Criminal Code that is at issue is section 718.2(e). It states that:

--all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The proposed bill would delete these last nine words as well as similar provisions in the Youth Criminal Justice Act.

The primary purpose of this principle is to encourage our courts to use restraint when considering imprisonment as a sentencing option. It is important to point out that this principle of restraint applies to all offenders, not just aboriginal offenders.

However, based on the fact that aboriginal offenders continue to be drastically over-represented in our criminal justice system and in our prisons, the principle stresses the importance of paying special attention to aboriginal offenders. Based on the history and current plight of aboriginal peoples in Canada, this special recognition is both necessary and justified. I therefore cannot support Bill C-416.

This relatively new principle of requiring courts to consider the circumstances of aboriginal offenders came into effect in 1996 by virtue of Bill C-41. This is one of a number of principles that were codified in that bill. Since that time, the courts, including the Supreme Court of Canada, have had an opportunity to consider this sentencing principle. I would like to share some of the comments that the Supreme Court made about paying particular attention to the circumstances of aboriginal offenders.

In 1999 the Supreme Court concluded in Regina v. Gladue that in sentencing aboriginal offenders section 718.2(e) required judges to consider the unique systemic or background factors that may have contributed to the offender having committed the crime, and then to consider whether there were traditional or cultural sentencing practices or sanctions that may have been appropriate for that particular offender in the circumstances.

The Supreme Court stated that aboriginal offenders:

--differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.

In Regina v. Wells, a unanimous 6 to 0 decision in 2000, the Supreme Court upheld a lengthy prison sentence for an aboriginal offender who had sexually assaulted an aboriginal woman. When considering whether a conditional sentence would be appropriate, the court stated that the application of section 718.2(e) did not mean that a sentence for an aboriginal offender would automatically be reduced since the determination of a fit sentence required consideration of all of the principles and objectives of sentencing set out in part XXIII of the Criminal Code.

The court stated that while section 718.2(e) mandated a different methodology for the sentencing of aboriginal offenders, it did not necessarily mandate a different result. Section 718.2(e) did not alter the fundamental duty of the sentencing judge to impose a sentence that was fit for the offence and the offender.

The court further restated the principle set out in the earlier decision of Gladue, that at the more serious end of the range of offences it would be more likely that non-aboriginal and aboriginal offenders would receive similar sentences. The court confirmed that the section did not mean that aboriginal offenders must always be sentenced in a manner that gave greatest weight to the principles of restorative justice and less weight to goals such as deterrence and denunciation.

In the Wells decision, the Supreme Court confirmed that the trial judge, in imposing a 20-month sentence, correctly applied the sentencing objectives of denunciation and deterrence to a serious sexual assault.

The Supreme Court in Wells said, however, that in appropriate circumstances, a sentencing judge may accord the greatest weight to restorative principles notwithstanding the fact that an aboriginal offender committed a serious offence.

The court stated that a just and appropriate mix of accepted sentencing goals depended on the needs and current conditions of the particular community where the crime occurred. The court also rejected the notion that restorative sections were necessarily lenient. In fact, the court pointed out that making reparations to the victim and the community might be more onerous than serving a short prison sentence.

The Supreme Court, after fully considering that section, concluded that this provision did not give preferential treatment to aboriginal offenders but sought to treat aboriginal offenders fairly by recognizing that their circumstances were usually different.

I fully support the balanced approach that has been set out by the Supreme Court in applying section 718.2(e) of the Criminal Code.

I am also pleased that section 718.2(e) of the Criminal Code has encouraged the development of programs and services to assist aboriginal offenders across the country. For example, in Toronto, a “Gladue court”, if we want to call it that, has been established and that makes section 718.2(e) work the way the Supreme Court has set out.

The government continues to be concerned about the over-representation of aboriginal offenders in the criminal justice system. This was confirmed by the statement made in the Speech from the Throne in 2001, opening the first session of this Parliament. It said:

Canada must take the measures needed to significantly reduce the percentage of Aboriginal people entering the criminal justice system, so that within a generation it is no higher than the Canadian average.

In conclusion, there is no doubt the aboriginal community is vastly over-represented in the criminal justice system. The government is continuing to make efforts to change this; however, the causes of over-representation involve complex social and economic factors, addictions and disadvantages. These are historical and not easily dealt with.

Despite indications that the courts are supporting the sentencing provisions in the Criminal Code that encourage restraint in the use of incarceration, the government continues to be concerned about the incarceration of aboriginal offenders. The government will continue to make efforts to ensure that aboriginals are not over-represented in our prisons. Paying particular attention to the circumstances of aboriginal offenders at the sentencing stage is only one small part of the overall plan to reduce this over-representation.

Our society needs to focus on the root cause of crime so that long term changes will result. For example, we are funding programs for aboriginals through the national crime prevention strategy, the aboriginal justice strategy, and the youth justice renewal initiative.

The government is committed to working with our aboriginal people and all Canadians to contribute to a safer and more just society.

Criminal Code
Private Members' Business

5:40 p.m.

Canadian Alliance

Inky Mark Dauphin—Swan River, MB

Madam Speaker, I am pleased to rise on behalf of the Progressive Conservation Party to take part in the debate on Bill C-416.

This bill amends the Criminal Code and the Youth Criminal Justice Act by removing the obligation of a court to consider with particular attention the circumstances of aboriginal offenders when imposing a sentence.

Let me remind our viewers that during this hour the House deals with private members' business. Essentially this is business initiated by private members and does not necessarily reflect the views of the parties. As we know in the House, as members we will have a free vote on this, probably in the following week.

We in the Progressive Conservative Party of Canada are not supportive of this type of amendment. It is imperative that we recognize social and cultural differences and that this recognition not be a type of reverse discrimination. The recognition by the Criminal Code and the Youth Criminal Justice Act of the societal differences do not prevent a judge during the sentencing process from examining the same type of differences for non-aboriginal people. In fact, judges do take into account all the factors of the accused all the time.

The bill brings to light a very serious issue. If positive discussion stems from this debate, it will come in the form of recognition that there are societal and cultural differences that need to be acknowledged. We talk about the diversity of the country. In a sense we are talking about the same topic. We know that there are homeless in the country and that there are millionaires who drive Cadillacs.

The debate tonight centres on what would be an amendment to the new Youth Criminal Justice Act and the Criminal Code. I will begin by talking about the Youth Criminal Justice Act and then move to the main issue which surrounds the recognition of aboriginal offenders during the sentencing process.

Arguably one of the most important tasks that we undertake in this place is to put in place a more effective and accountable system of youth criminal justice.

This summer I met with a number of aboriginal communities to deal with that very same topic, lack of youth justice. I found that if the government of the day wishes to be successful on that portfolio, it will have to put a lot more money into making sure that its programs are happening at the grassroots level because today that is what is lacking. We do not have the resources, the money or the manpower to make sure that the youth justice system works. We cannot operate like we did before with a new act if we do not put in the resources.

As legislators we have to be adamant about recognizing that no bill will satisfy everyone. That is pretty commonplace in the House.

The Youth Criminal Justice Act was intended to simplify and streamline the system. Young people in particular, their parents and those who were tasked with the enforcement of youth criminal justice would be able to work in a more suitable and responsive fashion that would be quick to adapt to the changing times in which young people found themselves facing tough decisions which led to involvement in the criminal justice system. The intent clearly was to somehow codify a system that would allow for early intervention and the proverbial pre-emptive strike in dealing with young people when they made those decisions that challenge the law.

Sadly, what we have done is put layers on top of layers and created a system that will result in numerous delays and new court challenges. In fact, the justice system basically echoed the sentiment in dealing with aboriginal youth, is it better to deal with it at the local level through a justice committee or is it better to wait a year before the accused shows up in court? It does not make any sense. Community problems have to be solved at the community level.

This new approach that was supposed to achieve so much will have the polar opposite effect. It will result in delays which follow the old legal maxim that justice delayed is justice denied. That is the example I just gave.

The system will not allow young people and their parents in particular to grasp what is happening. Many who work in the system would certainly agree that accountability and responsibility are paramount to any youth justice system. What this will do is separate that nexus of accountability.

What we are doing here is trying to somehow codify the system of discretion, telling police that they can now issue warnings, that they can now issue cautions and that these have to be written up in a certain way. We are superimposing these responsibilities in an artificial way, telling police that they must be counsellors and caseworkers, that they must document all of this, do the paperwork and spend less time out on the streets and more time being administrators and paper shufflers. That is the problem that exists today.

This imposition on top of the current responsibilities of law enforcement and the demands upon the men and women who are currently carrying out that important task would result in a great deal of delay. It would result in a great deal of unnecessary, unsubstantiated work that is currently outside the realm of police in terms of where they should be concentrating their efforts.

There are a number of serious flaws in this bill. The amendment passed by the Senate last year does manage to shed light on a very serious problem that can be found not only in the youth system but the criminal justice system at large.

Noting differences for differences' sake is unacceptable. What we see in the Youth Criminal Justice Act is a recognition of the inherent differences that do exist, sadly, on native reserves in this country. The fact of the matter is there are social and economic differences and the consequences those have on young people are very acute. The problems found on our reserves are very serious and highlight some of the inequities throughout our entire country. These differences need to be addressed.

The inclusion of the recognition that circumstances differ is an important one for courts to consider, not only through the adjudication process but when considering sentencing. This is not tantamount to the solution. It is simply a reminder to those in the judiciary that this has to be taken note of.

If there is one positive that can come from the debate today, it may be that the bill proposed by the member for Portage--Lisgar demonstrates that the societal differences between aboriginal and non-aboriginal youth are officially recognized. In my opinion they should continue to be recognized.

I admit that justice should be blind to race, ethnicity and gender. In a perfect world we would not need the leviathan, but this is not a perfect world and these societal inequities remain and are evident today.

These directions are provided in the Criminal Code and the new Youth Criminal Justice Act. I would submit that the youth and the adult systems have to be consistent. We have to have similar protection under the new Youth Criminal Justice Act.

Statistics and studies have consistently shown that there are a disproportionate number of aboriginal youth incarcerated in our system. We have heard already this evening that 85% of people incarcerated come from aboriginal communities. I do not believe that there is a race or ethnicity issue associated with the particular clause we are considering.

The addition of aboriginal recognition during youth sentencing is consistent with current Criminal Code provisions. It is not about specializing the interests of the accused or the victim. It simply puts into legislation a recognition that the situation in which aboriginal people find themselves today is worthy of note in coming to a conclusion as to what the appropriate sentence is that is meted out by the sentencing judge.

Some have argued that it is in and of itself discriminatory to have a clause like this in the Criminal Code at all. Yet in our justice system we have to recognize that the courts have made a very important pronouncement, alluded to in the Queen v. Gladue which sets out quite clearly that we can improve upon the situation of aboriginals in our legal system by this recognition of their circumstances. It is one of simple consultation and it allows judges to recognize what is inherent in the country today.

I close by saying that justice is about helping people to better themselves. It is not about locking them up and throwing away the key.

Criminal Code
Private Members' Business

5:50 p.m.

NDP

Brian Masse Windsor West, ON

Madam Speaker, it is a pleasure for me to add my voice and the voice of the New Democratic Party to oppose Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act.

For five years I was an employment specialist for youth at risk, be it employment or counselling for a vocation. I can say that provided there are the right programs and services, youth who are at risk can turn their lives around and make incredible contributions and strides in a matter of weeks or months. More important, they can become leaders and mentors.

This amendment goes in the wrong direction for youth. It singles them out in particular. I find I cannot support it.

I fail to see what the bill has to contribute to the elimination of crime, the improvement of the corrections system or the development of society. Rather than focusing on the causes of crime or the adverse situational circumstances affecting aboriginals, the Alliance is wasting the time of the House debating a measure that will contribute nothing to reducing crime.

I also point out that in aboriginal communities there are things that have been allowed to fester and to grow and have created conditions that are unique and special and challenges that require the commitment of the nation. We know that right now 50% of aboriginal children are living in poverty. We also know that the suicide rate of aboriginal children is more than five times the suicide rate of non-aboriginal children. These are statistics that come from troubled environments that need support and enhancement, not further unfair practices.

The Alliance is not proposing methods to tackle the causes of crime. It is proposing nothing to improve the circumstances faced by aboriginal people. Rather than getting tough on crime and tough on the causes of crime, it is getting tough on a convenient scapegoat. That is youth, youth that have perhaps made wrong decisions, or because of their background, require some assistance and some mentorship. That certainly could be developed a lot more strategically as opposed to this amendment.

Both the Liberals and the Alliance are reactive rather than proactive on this issue. The Liberals amended the legislation to deal with the particular circumstances of aboriginal offenders. The Alliance wants to do away with the amendment. Neither party is proposing measures that will resolve the underlying causes of crime in aboriginal communities. Why are they choosing to focus on the after the fact issues such as sentencing rather than getting serious about preventing crime and the underlying causes of crime within a particular community?

The whole situation reminds me of a scene from the TV program The West Wing , where a campaign strategist said, “We don't want a solution, we want an issue”. That seems to be the whole Liberal-Alliance agenda.

The Liberals are false friends of the aboriginal people in this. Really, the clause is an admission that Canada's aboriginal people should not expect things to get better: “We will let far too many of you live in despair, but don't worry, we'll take that into account when we decide how long we put you in prison”. Meanwhile, the Alliance claims that aboriginal people are getting off too lightly.

In the end, it is two sides of the same coin. Both the Liberals and the Alliance get an issue they can try to play to their mutual political advantage. Whether it is Liberal inaction or Alliance prejudice, victims of crime continue to suffer. Canadian communities continue to suffer and aboriginal people continue to suffer.

Finally, any allegations that the Criminal Code extends preferential treatment to aboriginals is absolutely false and manipulative of the public's understanding. The code permits judges to adopt the sensitivity and understanding required when sentencing aboriginals. This degree of understanding is not extended because the justice system favours aboriginals, but because it allows judges to implement sentences that are more fully complete and achieve the public and individual good.

This specific discretion protects the public by allowing judges to impose sentences that are tailored specifically to the rehabilitation needs of a section of society, rather than confining a judge's discretion to imposing a one size fits all punishment that ignores the needs and realities of particular individuals, groups or a community.

Simply put, Bill C-416 has nothing to offer, nor will it change anything. Supporting the bill would only lend credibility to those who wish to conceal and manipulate the real issues.